Court strikes down NLRB poster rule

Marc BlochBloch is a partner with the Labor and Employment Law Group at Walter | Haverfield LLP. He has more than 40 years of experience, in both the public and private sectors, in the field of labor relations law, having served as an attorney with the National Labor Relations Board (NLRB) and more recently as chief negotiator for numerous collective bargaining agreements.

Earlier this month, the District of Columbia Court of Appeals struck down a rule that would have required millions of employers to post the employee-rights poster from the National Labor Relations Board. In August, the NLRB promulgated a rule requiring virtually all private employers to post a large poster explaining employee rights to organize a union. The National Association of Manufacturers (NAM) filed a lawsuit to block the implementation of this rule. Essentially the rule mandated that portions of the poster contain union-friendly descriptions of employee rights--rights that do not apply equally in all industries or circumstances. Moreover, the rule tolled the limitations periods for, and ascribed anti-union motive to, employers that failed to post the poster and made them liable for an unfair labor practice. On the other hand, the poster failed to describe employee rights to object to union dues and to seek decertification. Nevertheless, a district court upheld the rule while striking down some of its enforcement provisionsHowever, the National Labor Relations Act (NLRA) contains a “free speech” provision. That provision, (§8(c) of the NLRA), provides that “…expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this [Act], if such expression contains no threat of reprisal or force or promise of benefit.”Under the NLRB rule, an employer's failure to post the required notice constituted an unfair labor practice. In addition, under the rule, the Board could consider an employer's “knowing and willful” noncompliance to be “evidence of anti-union animus in cases in which unlawful motive [is] an element of an unfair labor practice.” The Board, in other words, created a rule which allowed an employer's failure to post the “notice” as evidence of another unfair labor practice. The D.C. Court of Appeals found that the poster rule violated both the letter and spirit of the free speech provision of the NLRA. Additionally, the Court analogized this issue as a basic First amendment issue and noted: “Some of [the] Court's leading First Amendment precedents have established the principle that freedom of speech prohibits the government from telling people what they must say.”The bottom line in this case is that it halts the current NLRB's attempt through its “rule making” function from becoming an advocate for future unionization throughout the country.It is uncertain whether the NLRB will appeal this issue to the Supreme Court. The Fourth Circuit Court of Appeals based in Richmond, Virginia, however, is currently reviewing the same rule. Consequently, depending on the Fourth Circuit's decision, the posters everyone was worried about in 2011 can be relegated to the trash bin. It seems highly unlikely that the Fourth Circuit will find differently than the D.C. Court of appeals, though it is always a possibility.

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